Maryland court finds DRE to be unreliable

In 1979 two sergeants with the Los Angeles Police Department cooked up the Drug Recognition and Classification Program (DEC). The National Highway Traffic Safety Administration (NHTSA) climbed on board the bus and developed a standardized curriculum. The International Association of Chiefs of Police became the national certifying agency in 1990.

Police officers without formal scientific training sign up for a 72-hour (clock hours, not semester hours) course in which they learn about seven categories of drugs and are taught to administer a 12-step test (how tastefully ironic) to drivers suspected of being under the influence of drugs. Should they pass a test with a score of at least 80% they are certified as drug recognition experts (DRE).

And, in courtrooms across this country, police officers with no more knowledge than that are allowed to give expert opinions about what drug a motorist was under the influence of while driving. Jurors who have been trained since childhood to trust the police then take this testimony back into the deliberation room with them when deciding whether or not the government proved its case beyond all reasonable doubt.

It happens because judges are scared of their role as gatekeeper of what the jury hears and sees. Too many of the men (and women) in black dresses are fearful of their prospects for re-election should they actually enforce the Constitution and the rules of evidence.

Judge Michael Galloway of the Circuit Court for Carroll County, Maryland, wasn't afraid.

He was asked to determine whether such testimony was admissible in a DWI prosecution. He said it was not.

The state presented six expert witnesses who all claimed that the DRE program was valid, only one of whom was a licensed physician.

Dr. Karl Citek, an optometrist, did not attend medical school. He said he was an adjunct faculty member at the Institute of Police Technology and Management where he taught a three-day class on the medical and science background behind the DRE program. By his own word he stated that the officer conducting the DRE is "making a diagnosis of whether the person is impaired by a drug or medical condition." He also testified that the program does not provide for a set number of indicators that a DRE needs to observe to reach an opinion.

Ms. Michelle Spirk, a chemist with the Arizona Department of Public Safety, had been "heavily involved in the DRE program" for many years. She was only qualified to testify as to the possible effects of a drug and could not testify as to its effect on driving.

Mr. William Tower III, a law enforcement liaison with NHTSA, noted that officers entering the DRE program were not required to have had any prior medical training and that by taking the course and passing the test with a score of at least 80%, any officer could become a DRE. He claimed that the DEC program was designed so that officers could conduct a "systematic and standardized" evaluation to determine whether a person was under the influence of a drug. Then he went on to say that the opinion reached by the DRE would still be valid even if he didn't complete all twelve of the steps in the protocol.

Mr. Tower testified that even if no drugs at all are found in the subject's blood, the DRE is "not going to change [their] opinion after you get the blood. Mr. Tower stated that the reason there would be no change in the officer's opinion is that "you are limited on what the lab can test for." - State of Maryland v. Consolidated Cases

Officer William Morrison, coordinator of the Montgomery County Police Department's Chemical Test Unit, testified that the DRE is "specifically making a medical diagnosis during the examination by ruling out medical conditions during the examination." This from an officer with no medical training or background. He went on to say that he wasn't concerned about the individual indicators because he looked at the "totality of everything" in reaching his opinion.

Dr. Zenon Zuk told the court he had last read the DRE manual fifteen years ago - but that didn't prevent him from testifying on behalf of the protocol fifteen times. Interestingly enough, Dr. Zuk also works with the Western Branch of the U.S. Immigration Service sedating deportees with drugs. No one asked if he had a framed portrait of Dr. Joseph Mengele on his desk. His interest in the DRE program began with his fascination with Tharp's Equation. For those not up on their junk science, Tharp's Equation states that you can predict a person's alcohol concentration by subtracting the angle of onset of horizontal gaze nystagmus from 50 degrees. Just try finding that in a medical textbook or journal.

The defense experts were Dr. Fran Gengo, Dr. Neal Adams and Dr. Jeffrey Janofsky. Dr. Gengo is pharmacologist who has published 65 peer-reviewed articles, three of which dealt with drug-impaired driving. Dr. Adams is the chair of Ophthalmology at the Texas Tech Medical School. Dr. Janofsky is a professor of psychiatry at Johns Hopkins University School of Medicine.

Dr. Gengo testified that the DRE protocol uses tools used by the police in a "novel and unreliable way." He also testified that drugs can have a myriad of effects on an individual that aren't addressed in the DRE manual.

"[T]he data has spoken for itself that [the DRE protocol] cannot reliably discern impairment from non-impairment and cannot reliably identify the medication allegedly causing the impairment." -- Dr. Fran Gengo

Dr. Adams testified that there was no validity to Tharp's Equation. He also had problems with the DRE matrix because it focused more on the category of drugs rather than the relative weight of the drugs and because police officers don't have the judgment nor experience that doctors have in making medical diagnoses. He listed a series of questions regarding nystagmus that are unaddressed in the DRE protocol.

"Medical judgment is using items that may be in a matrix and placing our own experience, our own understanding of the medical literature, placing the knowledge that we have gained into that matrix, understanding the relative weights of different items in that matrix and coming out with a judgment. So that even if we were using this matrix in its totality without anything else, there is an element of judgment that we as physicians would incorporate to assist us. And that is not present; that is, it is a very important component of the matrix that is not present in this matrix. And that is what I was trying to get at is how we as physicians interpret these." - Dr. Neal Adams

Dr. Janofsky was concerned that the DRE protocol had never been validated in any peer-reviewed scientific journal. He testified that the DRE protocol was neither a diagnostic test nor a standardized protocol because it required clinical medical judgment for someone to come to a valid conclusion. Finally, Dr. Janofsky testified that there is a difference between the presence of a drug and evidence of impairment by that drug.

In its review of case law from other states regarding the DRE, the court found instances in which DRE testimony had been permitted because it wasn't scientific evidence. The state argued that the DRE's opinion was formed on the basis of his knowledge and experience. Judge Galloway didn't bite at that apple.

The state wants to have it both ways. It wants to present the evidence as if it's the result of a scientific process but it doesn't want to have to meet the burden established by Daubert for the admissibility of scientific evidence. Prosecutors know that if they can have a police officer color up a protocol that lacks any scientific validity with some words and phrases that convey it as being valid and accepted, then a jury will eat it up like candy.

In the end, Judge Galloway found that the DRE protocol was a novel technique that was not generally accepted in the scientific community. He also found that, even if the DRE protocol wasn't scientific evidence, that a DRE "is not sufficiently qualified to render an opinion, that the testimony is not relevant, and the probative value of the evidence is substantially outweighed by its prejudicial effect."

Unlike many judges who are unwilling to upset the apple cart, Judge Galloway was swayed more by his concern over a defendant's right to due process than judicial efficiency.

DREOrderExcludingDREMarylandMarch52012

What's the point?

To secure a defendant's attendance at trial, a magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community. -- Texas Code of Criminal Procedure Art. 17.40(a)

The other day I was sitting in court when the judge called up everyone making their first appearance. He had the prosecutor read the probable cause statement. On every DWI case he asked the prosecutor whether there was an accident or a breath test.

The first defendant was a young man (I'm guessing he was in his 20's, but as I'm getting older, my ability to guess ages is in rapid decline). There was no accident in his case - but there was a breath test. A breath test of .000. The arresting officer suspected he was under the influence of something other than alcohol so a drug recognition evaluation (more voodoo science for another day) was performed. Apparently our hero had taken a central nervous system depressant or two.

The judge order the young man to install an ignition interlock device in his car.

I found it to be quite odd - as did the attorney sitting next to me. It's not like an ignition interlock is going to detect the presence of CNS depressants (other than alcohol) in one's breath. If this young man had a problem, it certainly didn't appear to be with alcohol.

A couple of minutes later we had DRE number two on the morning. Again we had a breath test well under the legal limit. And, again, the judge ordered the defendant to install an ignition interlock device on her car.

The law says a judge shall order an ignition interlock device as a condition of bond for a defendant who has at least one prior conviction for driving while intoxicated. The law also says that a judge may order an ignition interlock device as a condition of bail in a case with a breath or blood test over .15.

So what's going on here? Ordering the installation of an ignition interlock when a person clearly was not intoxicated by consuming alcohol makes little or no sense. It certainly doesn't do anything to enhance the safety of the community.

All it appears to do is line the pockets of the companies that distribute, install and maintain the devices. I do wonder where that money goes.

The problem with (prescription) drugged driving

Intoxicated means: not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body. -- Texas Penal Code Sec. 49.01(2)

According to the DWI statutes in every state in the US, a motorists is presumed intoxicated if he has an alcohol concentration of .08 or higher. But what about motorists arrested for DWI who have prescription medications in their systems?

Under the Texas DWI statute a motorist can be intoxicated by drinking alcohol, ingesting illegal drugs or taking legally prescribed medicines. A breath test will only show the presence, or absence, of alcohol. Only a blood or urine test will detect the presence of any other substances.

A blood test may show that a motorist had marijuana or cocaine in his system -- but that blood test doesn't say when the driver ingested those drugs or whether the amount found in his system was intoxicating. The same holds true with prescription medications. Due to the chemical makeup of prescription drugs, the effects of a medication may be different from person to person. Then there's the synergistic effect of drugs with each other -- it's the reason doctors ask patients if they are taking any other prescription medications before prescribing something.

Many law enforcement agencies have so-called drug recognition experts (formerly known as drug recognition evaluators) who swoop in with a battery of "tests" to determine whether a motorist suspected of DWI was intoxicated by some substance other than alcohol. Their conclusions, however, are generally determined by what the motorist admits to taking. If the motorist admits to smoking pot then driving, the DRE concludes that he was intoxicated by use of marijuana. Gotta love it when it all comes together like that.

The question becomes murkier when a motorist has only been taking prescription medications, as noted in this New York Times article. What were the medications? How do the drugs interact with each other? Were there warnings on the bottle about the effects of the drug? What dosage was the motorist taking? Was there alcohol in the driver's system? What about illegal drugs?

Chances are members of the jury panel are taking prescription medications? How would they feel if they thought they could be arrested for driving while intoxicated after taking their medicine?